The Problem with Indian Status, Part 1: So Who Gets Status Anyway?

Part 1 of a three-part series on Canada’s Indian Act status regime. This post covers how the Indian status rules work. Parts 2 and 3 will cover some of the problems with the law and how it is applied. Some indigenous people prefer to be referred to as “Indian” while others do not. In this blog post, I use the word as a legal term defined under the Indian Act.

Since settlers arrived in Canada, we have insisted on defining indigenous identity in our own terms. Settlers even chose the word “Indian” to refer to indigenous people, absurdly born out of an explorer’s mistaken belief that he had arrived on the shores of India. The early colonial and Canadian laws relating to Indians defined the term very broadly to include anyone of “Indian blood” belonging to a particular band or body of Indians, including anyone who married an Indian or was adopted by an Indian, and in some laws, even anyone who “followed the Indian way of life”. Parliament has amended the definition over time, both narrowing who is included and making the rules more complex. This post outlines some of the many problems with the laws and policies that define who is considered an “Indian” under the Indian Act, often referred to as who has “status”.

How the Indian Act Status Regime Works

Section 6 of the current Indian Act describes who is entitled to Indian status. These rules are complex, but the basic rule is that someone with two parents with Indian status will have status under section 6(1) of the Indian Act (sometimes referred to as “six-one” or “full” status). Someone with one parent with status under section 6(1) and one parent without status gets status under section 6(2) (sometimes referred to as “six-two” or “half” status). Section 6(2) status provides the same rights and entitlements as section 6(1) except that it affects a person’s ability to pass on status to their children. This is because if a person has one parent with section 6(2) status and one parent with no status, they are not entitled to status. This is commonly referred to as the “second generation cut-off”. Disturbingly, this rule means that as more status Indians inter-marry and have children with non-status people, the total population of Indian persons will gradually diminish, eventually leaving the federal government with no Indians to fund under federal programs and services that are available to status Indians only.

Changes to the rules governing Indian status were made in 1985 and 2011 in response to the Charter of Rights and Freedoms and the case of McIvor v Canada. These changes ended the granting of status to non-Indian women who married Indian men, and reinstated the status of people subject to discriminatory rules in previous versions of the Indian Act that took away the status of Indian women who married non-Indian men and their children (“marrying out”); Indians with a non-Indian mother and grandmother once they reached the age of 21 (the “double mother rule”); Indians who joined the military, attended university or became a priest, lawyer or doctor; and even Indians who left their reserve for a long period of time.

Why Status is Important

Indian status is important to individuals for many reasons, including because: some see it as a recognition of their identity as an indigenous person and their connection to their families and communities; it entitles them to the right to live on reserve, exemption from some taxes and protection of their property on reserve from seizure; it provides access to certain federal programs and services; and in many communities status is required for band membership.

Indian status is also important to First Nations governments and communities, including because the number of status Indian community members is tied to federal funding for certain programs and services administered by them and the land and cash package offered by Canada and British Columbia in the BC Treaty Process is determine with reference to number of status band members.

Check back Monday for Part 2 of three which will discuss specific problems with these laws on Indian status.